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Wares Wars 

Consumer non-protection act threatens open-sourcers — not to mention the rest of us.

Wednesday, Apr 19 2000

My name is Bill. I run a company that creates software. You probably use some of my software, but you might not like me. You may dislike me so much you use my software to write flaming anti-Bill screeds, or to put up an anti-Bill Web site, or to create software to compete against mine. I might not like it, but there’s not much I can do to stop you.

Give me a few months.

UCITA (the Uniform Computer Information Transactions Act), an amendment to the Uniform Commercial Code, proposes to ”standardize“ the rights and responsibilities that software and electronic-information companies have with regard to consumers, and vice versa. It will be before all 50 state legislatures. Last month, Governor George Gillmore signed UCITA into law, making Virginia first over the wall, followed closely by Maryland. It‘s supported by many of the largest software, hardware and Net-related companies in America. It’s designed to change the relationship between companies and computer consumers forever. You‘re naive if you think this is good news.

One of the problems with buying software is that it’s never really sold to consumers. What you buy is a license to install Program X on your computer for your own use. You‘re not allowed to go around making copies for all your friends, and you can’t stick a new label on the program and sell it as your own creation.

With UCITA, the Not Allowed list balloons to gargantuan proportions. For instance, UCITA forces you to actually read the license or the user agreement on a Web site. Clicking the ”I Agree“ button really does bind you to the terms of the interminable prose above it, even if that prose says you‘ll undergo voluntary sterilization for the privilege of using the product.

And it isn’t just unreasonable contract conditions that concern the software developers who oppose UCITA. The law sneers at the concept of ”fair use,“ which covers much of what you the consumer are allowed to do with software once you‘ve licensed it. Perhaps you’ve discovered an uncharted function in the software, and you‘d like to take part of the program apart to see how it works. (UCITA also protects companies from the legal consequences of crappy documentation, by the way.) That’s reverse engineering, and that‘s prohibited -- a critical issue for developers, who often can only discover what code like Windows 2000 is really doing by pulling it to pieces.

And if you irritate the software manufacturers, UCITA gives them the right to truly screw with you. UCITA’s H-bomb is a provision allowing the company to disrupt or disable your mission-critical software if they don‘t like what you’re doing with it. Say you buy e-mail software from CodeDoodz Corp., and the company includes a clause in the license that says you have to compose your messages in ALL CAPS. You don‘t comply. CodeDoodz finds out. CodeDoodz has the legal right to crawl up your modem line and blow away your copy of CodeDoodzMail -- taking your mail archives with it. What, didn’t you read the contract? (Before you say you did, don‘t forget to check your in-box, since under UCITA, companies can unilaterally change the contract if they inform you via e-mail. Too bad your e-mail was already deleted.)

There’s no negotiating room in UCITA‘s prohibition on reverse engineering or electronic self-help (as if the software company was willing to negotiate with you!) -- troubling, especially when you recall that although your mission-critical software is mainly e-mailed gossip, your local hospital’s archives are probably a tad more critical.

Many licensing agreements currently are inserted in boxes of software that claim that by opening the box you accept the licensing agreement, even though you can‘t read the agreement till you open the box. UCITA formalizes the legality of such agreements. And it gets worse: The biggest companies are indemnified from most kinds of liability, even when they know they’re putting out crap -- in most cases, companies would be liable only for the purchase price of the buggy software. Ralph Nader‘s head should be spinning 360 degrees at the thought.

It is. The coalition opposed to UCITA is both broad and deep. Nader is there with his Consumer Project on Technology. The California attorney general opposes UCITA, as do 24 of his equivalents in other states. Industry groups such as Computer Professionals for Social Responsibility -- as part of 4CITE, a broad coalition of consumers and developers -- have spoken out against the bill. The IEEE (Institute of Electrical and Electronics Engineers) opposes it, as do many librarians, newspaper and magazine publishers, the National Writers Union, a constellation of consumer advocacy groups and the Federal Trade Commission. Even the Motion Picture Association of America, online Public Enemy No. 1 right now due to overzealous copyright protection, has come out against UCITA.

Don’t fool yourself into thinking software manufacturers won‘t walk the tough talk in UCITA. UCITA supporters take a dim view of the opposition, particularly those nasty Linux folk, who are ominously referenced on one pro-UCITA site: ”Its supporters should get a lawyer before they hurt themselves.“ Many Linux developers are concerned that UCITA-imposed liabilities will choke off the open-source movement (surely not a factor in Microsoft’s support?). The already embattled shareware community could also feel a big chill.

Who else is harmed? How about the First Amendment? Say I (and no, I‘m not Bill anymore; that was a literary device) decide to write about my experiences with BeWare, new software from CodeDoodz. I test the software only to find that it has about 63,000 bugs, including one that shoots fire out of my monitor and kills my cat. Under UCITA, CodeDoodz isn’t responsible for telling you about those bugs or paying for the vet bills.

Sounds like it‘s up to me to catch as many bugs as I can and alert you, the reading public. Wrong! The licensing agreement forbids me from publishing testing-based evaluations of BeWare without prior approval from CodeDoodz. I call to tell them I’m planning to review the software. They demand that I send a copy of the review for approval. I refuse. They tell me they‘ll sue me for violating the licensing agreement if I run the article. I can’t review BeWare for you -- unless, of course, my publisher feels like establishing some legal precedents.

So much for the First Amendment. And good luck with your own copy of BeWare. Oh, and don‘t forget to hide your cat.

The kind of pressure UCITA will bring to bear on the media already is very real: PC magazine, one of the computer-journalism world’s 800-pound gorillas, was prevented last year from publishing benchmarks of its tests on Oracle‘s database software. UCITA strengthens the talons of Oracle and its ilk; odds are that such restrictions on a free press would be thrown out of court eventually, but a legal battle costs more money than all but the largest publishers have in their war chests.

Is it too late? No, but things are moving fast. In Virginia, outrage over the bill failed to force a gubernatorial veto, but UCITA won’t take effect there until mid-2001. In the meantime, a joint House-Senate joint committee is studying the law‘s effects on information transactions. (One would think the study would have come first, but UCITA has been, as they say, a rush order.) The states now reviewing UCITA are Hawaii, Illinois and Oklahoma; up in the state of Washington, Microsoft has heavily lobbied for its passage. Just think -- if UCITA passes, such companies may never have to lobby again. All they’ll have to do is pull the plug on the opposition.

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